MICHAEL BANDLER v. KARING WITH KINDNESS, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL BANDLER,

Plaintiff-Appellant,

v.

KARING WITH KINDNESS, INC.

and KATHLEEN KENNY,

Defendants-Respondents.

___________________________________________________

December 29, 2016

Argued December 6, 2016 Decided

Before Judges Fisher and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1770-14.

Michael Bandler, appellant, argued the cause pro se.

Francis J. Ballak argued the cause for respondents (Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, P.A., attorneys; Mr. Ballak and Elliott J. Almanza, on the brief.)

PER CURIAM

In an earlier suit in 2012, plaintiff Michael Bandler obtained a default judgment against Evelyn Melillo for $54,159.13; plaintiff later secured an order, entered in that action on October 21, 2012, that directed "execution issue against the earnings of [Melillo] from [her] employer," Karing With Kindness, Inc. That order was served on Karing With Kindness, Inc.: by plaintiff's then attorney in October 2012; by a private process server in April 2013; and by plaintiff by email in May 2013. The employer withheld nothing from Melillo's wages.

In May 2014, plaintiff commenced this action against Karing With Kindness, Inc., and its principal, defendant Kathleen Kenny (collectively, defendants), seeking damages based on their failure to withhold a portion of Melillo's wages pursuant to the terms of the October 21, 2012 order.1

Defendants moved for summary judgment based on their contention that plaintiff failed to comply with the proper procedures for obtaining a wage garnishment; specifically, defendants argued that plaintiff failed to comply with N.J.S.A. 2A:17-512 and applicable court rules3 by failing to have the sheriff serve defendants with the process necessary to generate a wage garnishment.

In granting summary judgment, the motion judge agreed with defendants and held that plaintiff failed to demonstrate that the October 21, 2012 wage execution order was ever delivered to a sheriff or other qualifying court officer, that a writ of execution was ever issued, or that a writ of execution was served upon defendants by a sheriff or other qualifying court officer.

In appealing, plaintiff argues that defendants "failed to meet their initial summary judgment burden" and that he "raised issues of material facts." We find insufficient merit in plaintiff's arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

For good reason, the acceptable practice -- made mandatory by the statute and court rules cited above -- is for the sheriff to serve an employer with all appropriate pleadings in order for a judgment creditor to obtain the garnishment of wages owed to a judgment debtor. There is no dispute that, by failing to include the sheriff in his efforts, plaintiff failed to take the appropriate steps; it is irrelevant that plaintiff or his agents may have served the employer with the October 21, 2012 court order or that the employer or its agents -- defendants here -- had actual knowledge of the order.

We lastly observe that plaintiff would have us view the matter narrowly. His argument is that the only question raised by way of defendants' summary judgment motion -- and, therefore, in his view, the only question that should have been decided by the motion judge -- was whether the wage garnishment order was served on defendants. He argues that the trial judge should not have decided whether a writ of execution issued and was served by the sheriff. We disagree. The record reveals that, even if defendants' motion papers should be viewed as so limited, the motion judge provided plaintiffs with a full and fair opportunity to demonstrate a writ of execution was issued to and served by the sheriff.4 When plaintiff failed to come forward on the adjourned return date with evidence to support such a requirement, the motion judge properly granted summary judgment.

Affirmed.

1 In another action, plaintiff unsuccessfully sought relief from Melillo's ex-husband based on his alleged failure to provide information about Melillo's assets. Bandler v. Melillo, 443 N.J. Super. 203, 206 (App. Div. 2015).

2 This statute describes the wage-garnishment process and declares that levy does not occur unless and until a writ of execution is served upon the employer by the sheriff or other officer.

3 Rule 4:4-3(b) provides that "[u]nless the court otherwise orders, all writs and process to enforce a judgment or order shall be served by the sheriff." And Rule 4:59-1(a) and (e) require that writs of execution be directed to the sheriff, who shall be the sole party responsible for levying on the judgment debtor's property.

4 Oral argument on the motion was first heard on April 27, 2015. The judge continued the matter until June 26, 2015, so as to provide plaintiff an opportunity to demonstrate a writ of execution had issued. The matter was again adjourned to August 21, 2015; at that time, without evidence a writ of execution issued or was served by the sheriff, the motion judge granted summary judgment.